Brunson v. State, B--76

• Citation: 418 S.W.2d 504
• Decision Date: 26 July 1967
• Docket Number: No. B--76,B--76
• Parties: J. H. BRUNSON et ux., Petitioners, v. The STATE of Texas et al., Respondents.
• Court: Texas Supreme Court

Page 504

418 S.W.2d 504

J. H. BRUNSON et ux., Petitioners, v. The STATE of Texas et al., Respondents.

No. B--76.

Supreme Court of Texas.

July 26, 1967.

Rehearing Denied Oct. 4, 1967.

Mahoney, Shaffer & Hatch, Richard J. Hatch, Corpus Christi, for petitioner.

Fischer, Wood, Burney & Nesbitt, James R. Harris, Corpus Christi, Crawford Martin, Atty. Gen., Woodrow Curtis, Asst. Atty. Gen., Austin, Sorrell, Anderson, Porter & Stone, William R. Anderson, Jr., Corpus Christi, for respondent.

STEAKLEY, Justice.

This appeal from a summary judgment for the State, affirmed by the Court of Civil Appeals, 410 S.W.2d 9, requires a determination of whether a judgment in a condemnation proceeding awarding the State an easement for highway right-of-way purposes, and fixing the compensation to be paid the landowners, includes title to permanent improvements located thereon about which the judgment is silent. We hold that it does not.

The problem reaches us in this manner. On May 10, 1962, the State of Texas, Respondent, and Nueces County, initiated condemnation proceedings against J. H. Brunson and wife, Petitioners, and others not pertinent here, for the stated purpose of occupying certain land of Petitioners for right-of-way purposes in widening Highway Number 358. Special commissioners were appointed pursuant to Art. 3264 ¹ who subsequently awarded Petitioners the sum of $14,308.00 as damages sustained by Petitioners 'by reason of the taking of said easement.' Petitioners filed timely objections to the award and pursuant to Art. 3268 the State deposited the award sum of $14,308.00 in the registry of the county court. The award was withdrawn by Petitioners. Thereafter, the county court of Nueces County entered judgment finding 'that the State of Texas should be awarded the easement herein sought for highway right-of-way purposes' and awarding Petitioners the sum of $14,308.00 as 'damages for such right-of-way easement.' This judgment has become final.

There was located on the property over which the right-of-way easement was obtained certain permanent improvements consisting of a trailer house, cabana, and other related items. The condemnatior judgment is silent as to their disposition and the record in the county court hearing is not before us. Petitioners removed the improvements subsequent to the judgment of the county court, whereupon the State filed this suit against Petitioners alleging the acquisition of title to the improvements and that Petitioners had converted them to their own use to the damage of the State in the sum of $3,227.00. Shortly after filing the suit, the State recovered possession of the improvements under a writ of possession issued out of the county court and reduced its damage claim to $327.00.

Petitioners filed a cross action against the State and Respondents Harry W. Coon and T. O. Foster, Jr., the agents and employees through which the State acted, alleging conversion of the trailer house and related items, and seeking a joint and several judgment for damages; there was also a damages count against Respondent Coon for an alleged slander of Petitioners. The motions for summary judgment of the Respondents, the State, Coon and Foster, against the cross action of Petitioners were granted by the trial court. The action of the trial court in such respects was brought forward by proper points in the appeal of Petitioners to the Court of Civil Appeals. In their points of error here, however, following affirmance of the judgment of the trial court, Petitioners present only the points copied in the footnote ² which do not bring forward for review the action of the Court of Civil Appeals in affirming the trial court judgment granting the motions for summary judgment of Respondents Coon and Foster.

Article 6674w--3 authorizes the State through the State Highway Commission to purchase and condemn for highway construction purposes any land in fee simple title, or any lesser estate or interest therein, with certain exceptions not relevant here. The State elected to condemn a lesser estate in the nature of a right-of-way easement over Petitioners' land. The easement thus acquired carried with it the right of the State to remove any improvements on the land which would interfere with the full and beneficial use of the easement rights but did not take away the subsisting ownership of the landowner in the improvements and his right to remove them. In Texas Power & Light Co. v. Cole, 158 Tex. 495, 313 S.W.2d 524 (1958) the utility sued to condemn an easement and by an amendment to its petition relinquished until a special date its easement rights to interfere with the sand and gravel mining operations of the landowner. In holding this to be a permissible arrangment we said: 'The petitioner (condemnor) under the original easement or the amendment thereto never acquired any rights to the gravel upon the property, but the respondents at all times remained the owners thereof.' See also Odum v. Rutledge & J.R. Co., 94 Ala. 488, 10 So. 222, 223 (1891), stating that the easement condemnor 'had the right to remove all buildings or constructions located upon its right of way, or which interfered with its use; but the property interest in such building or improvement remained in the owner, subject to the right of the company (condemnor) to have them removed.' See also 2 Lewis, Eminent Domain § 853, p. 1490.

This recognition that in an easement taking title to the land and its appurtenances remains in the landowner comports with the rule stated in 3 Nichols on Eminent Domain § 9.2(5) (1965):

'Where the fee simple absolute title to land has been acquired the condemnor acquires all appurtenances thereto, buildings thereon, minerals lying beneath the surface, waters thereon * * *.

'Where only an easement is acquired the owner retains title to the land and all that is ordinarily considered part of the land.'

Cf. Burgess v. City & County of Dallas Levee Imp. Dist., 155 S.W.2d 402 (Tex.Civ.App.1941), error ref. w.o.m. See Heyert v. Orange & Rockland Utilities, Inc., 17 N.Y.2d 352, 271 N.Y.S.2d 201, 218 N.E.2d 263 (1966); Thompson v. Orange & Rockland Elec. Co., 254 N.Y. 366, 173 N.E. 224 (1930); and Shields v. Norfolk & C.R. Co., 129 N.C. 1, 39 S.E. 582 (1901).

If we correctly apprehend the basic position of the State, and the underlying rationale of the Court of Civil Appeals, it is tht if acquisition by the State of title to the...